RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-03755
            INDEX NUMBER:  128.04
      XXXXXXX    COUNSEL:  None

            HEARING DESIRED:  Yes


MANDATORY CASE COMPLETION DATE:  5 Jun 07


_________________________________________________________________

APPLICANT REQUESTS THAT:

He be reinstated to flight status retroactive to 1 Aug 02 and  receive
all monetary benefits, to include flight pay and Aviator  Continuation
Pay (ACP).

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was disqualified from his flying duties and received a reduction in
pay and bonus for failure to  undergo  genetic  testing  to  determine
whether or not he was a carrier of Huntington’s disease (HD).  Genetic
testing is not currently required and was not previously required  for
military service, to include flight duties or to perform daily duties.
   He cannot find any precedent in the Air Force or federal government
service that mandates genetic testing.

Executive Order 13145, dated Feb 00, prohibits agencies of the federal
government from obtaining genetic information about their employees or
job applicants and  from  using  genetic  information  in  hiring  and
promotion decisions.

He has spent three years working through the Air Force  system  to  be
reinstated.   He  was  reinstated  as  of  25  Jul  05.   His  medical
condition, in which he returned to  flying  duty,  remained  unchanged
throughout the three year period.

The Air Force Medical Service position, as stated in a letter dated 25
Jun 03, was that testing was not considered disqualifying  in  and  of
itself.  Retesting, even if his testing improved, would not result  in
a favorable waiver decision.  He concludes the decision to  disqualify
him was based strictly on his refusal to take genetic testing.

He  has  previously  requested  a  waiver  of  genetic   testing   and
reinstatement to flying duties with an effective date of 1 Aug 02.  It
was disapproved.  After going to the Chief of Staff of the  Air  Force
requesting approval for an “Exception to Policy,” he received a letter
from HQ USAF/SG and was subsequently reinstated as of      25  Jul  05
for  Flying  Class  II  duties.   In  Sep  05,  he  requested  through
AFMSA/SGPA channels by  e-mail  that  his  date  of  reinstatement  be
corrected to 1 Aug 02.  Their position was for him to take his request
to the AFBCMR.

In support of his appeal, applicant provides a copy of Executive Order
13145, a copy of an Aeromedical Consultation Service Review, dated  25
Jun 03, and copies of paperwork related to his request for  a  medical
waiver.

The applicant’s complete submission, with attachments, is  at  Exhibit
A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is presently serving on active  duty  in  the  grade  of
lieutenant colonel as a KC-135 navigator.  In 1997,  he  informed  the
Air Force his father may have  died  from  Huntington’s  Chorea,  also
known as Huntington’s Disease (HD).  At the time,  the  applicant  did
not have any symptoms of the disease but was offered genetic  testing.
He declined the testing and was granted a waiver so he could remain on
flying status.  In Jul 02, he was again tested for any symptoms of HD.
 His neuropsychological test results were described  as  “troublesome”
but not disqualifying.  He was  again  offered  genetic  testing  and,
again, declined.  He was also offered a positron  emission  tomography
scan or PET scan to assess abnormalities or changes in the brain.  The
applicant declined.  The applicant was deployed from Nov 02 to May  03
and on or about 21 Jan 03 was notified he was retroactively  medically
disqualified from flying status as of 1 Aug 02.

Per Aeronautical Order (AO) 0032, dated 19 Nov 02, the  applicant  was
disqualified as of 1 Aug 02 for failing to maintain medical fitness; a
non-permanent medical  disqualification.   The  order  terminated  his
Aviator Career Incentive Pay (ACIP) and,  by  extension,  his  Aviator
Continuation Pay (ACP).  A case  summary  sheet  from  the  Air  Force
Medical Service Agency, dated 9 Jul 03, clarifies  the  applicant  was
disqualified from all flying classes due to positive family history of
Huntington’s Chorea.  It also noted he refused  the  genetics  testing
and the PET scan.  Upon his  return  from  deployment,  the  applicant
requested retesting for any neurological or other symptoms of HD.   He
did not offer to take the PET scan or consent to genetic testing.  His
request was denied.  He then requested an  exception  to  policy  from
both the Secretary of the Air Force (SecAF) and Chief of Staff of  the
Air Force (CSAF).

On 8 Mar 04, AFMSA/SGPA responded on behalf of the SecAF  stating  the
applicant’s previous  test  results  were  consistent  with  an  early
neurodegenerative process, noting that the  identified  deficits  were
“determined  to  have  flight  safety  implications  beyond  the  rate
acceptable for the Air Force.”  On 15 Dec 04, HQ USAF/SG responded  on
behalf of the  CSAF  stating,  if  the  applicant  obtained  favorable
results from  a  PET  scan,  the  case  might  be  reconsidered.   The
applicant consented to the PET  scan  and  was  reinstated  to  flying
status on 25 Jul 05.

_________________________________________________________________

AIR FORCE EVALUATION:

AFMSA/SGPA does not make a concrete recommendation, but indicate  they
have no objection, as a matter of good faith, to the  applicant  being
reinstated  retroactively  and  receiving  flight  pay.   AFI  48-123,
“Medical   Examinations   and   Standards,”   paragraph    A7.23.1.14,
disqualifies flyers from flying duty with personal or  family  history
of Huntington’s Chorea.  A waiver may be granted if an  individual  at
risk is shown not to carry the gene.  They note that the Air Force did
not violate Executive Order 13145 in requesting genetic testing on the
applicant and that it is likely the  applicant  met  flying  standards
while disqualified, but this could not be “ascertained” prior to  2005
due to his refusal to undergo the genetic testing.

AFMSA/SGPA attaches an extract from AFI 48-123.

The complete evaluation, with attachment, is at Exhibit C.

HQ USAF/XOOT recommends denial of the applicant’s request.  They  note
that the appropriate  medical  authority  disqualified  the  applicant
effective 1 Aug 02.  They further note they do not have the  requisite
medical expertise or authority to determine  the  applicant’s  medical
fitness during the period in question.

The complete evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response to the Air Force evaluations, the applicant notes that
AFI 48-123 disqualifies flyers from flying duty  with  a  personal  or
family history of Huntington’s Chorea and that a waiver may be granted
if an individual at risk is shown not to carry the  gene.   He  states
the Air Force has not shown whether or not he carries  the  gene.   He
states the only way to determine if he carries  the  gene  is  through
genetic testing and that at age 50 he  remains  asymptomatic  and  has
passed all neuropsychological testing both in 2002 and 2005.  He  also
passed all annual flight physicals in  2002,  2003,  2004,  2005,  and
2006.  The applicant emphasizes that the decision to test  or  not  is
voluntary and that AFI 48-123 does not state it is  a  requirement  to
undergo  genetic  testing  to  determine   an   individual’s   medical
qualifications for flying duty.

The applicant disagrees with the statement  “The  Aeromedical  Consult
service (ACS) did not recommend a waiver without a normal genetic test
due to flight safety concerns.”  The applicant  provides  a  recap  of
what ACS stated in the “Summary  &  Recommendations”  section  of  its
report and states  that  ACS  did  recommend  a  waiver  with  AFMSA’s
approval.

The applicant discusses the information in the advisory  dealing  with
the criteria in  AFI  48-123  for  a  disqualifying  condition  to  be
considered waiverable.  The applicant states it  is  clear,  with  his
approved Jul 05 waiver, that he does not pose nor has he ever posed  a
safety concern or risk of sudden incapacitation.

The applicant notes that AFMSA/SGPA states the AF/SGS determined  that
Executive Order 13145 does not apply to members of the  armed  forces.
The applicant states there is pending legislation similar to Executive
Order 13145 that could be applied to the armed forces.  He notes  that
the issue of genetic testing impacting employment  is  relatively  new
and that guidance is still evolving.  The applicant provides  examples
of two pending bills.  He again emphasizes he was  never  informed  or
directed to take genetic testing or advised if he did not take  it  he
would  be  grounded  from  flying  duty.   He  further  emphasizes  he
continued to receive a waiver starting in 1997 and that even the AF/SG
stated it was his decision whether or not to take the test.

The applicant notes HQ USAF/XOOT’s statement that his case has merit.

The applicant again attaches a letter  from  HQ  USAF/SG  stating  the
decision to test is voluntary, a copy of the Aeromedical  Consultation
Service Aerospace Medicine Evaluation Report  from  9-12  Jul  02,  an
extract from AFI 48-123, copies of pending senate bills, and  handouts
on Huntington’s Disease.

The applicant’s complete submission, with attachments, is  at  Exhibit
F.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

Pursuant to the Board’s request, AFPC/JA  provided  an  evaluation  of
this application.  They recommend denial.

The Air Force medical community is asked to  determine  which  members
are medically able to perform flying duties, to include  acting  as  a
navigator.  The physical and mental well-being of a member  performing
this type of duty is key to managing the risks  associated  with  this
naturally hazardous duty.  Huntington’s disease (HD) is a  known  risk
to the mental and physical performance of Air Force members.  In  this
case, because of the applicant’s refusal to allow  additional  testing
for personal reasons, the  medical  community  had  to  determine  his
fitness for flying duty on less than adequate information.  Given  the
flight safety  implications  of  an  incorrect  decision,  they  acted
responsibly and cautiously, but not unfairly.

The applicant had the ability, through genetic testing  and/or  a  PET
scan, to provide additional information to the Air  Force  that  would
have assisted in making  this  medical  determination.   He  declined,
ultimately depriving himself of the opportunity to  remain  on  flying
status and depriving the Air Force of the ability  to  use  him  as  a
navigator.

The complete evaluation is at Exhibit G

_________________________________________________________________

APPLICANT’S RESPONSE TO ADDITIONAL AIR FORCE EVALUATION:

The applicant indicates his disagreement with  the  AFPC/JA  advisory.
In response to AFPC/JA’s  assertion  the  “medical  community  had  to
determine  his  fitness  for  flying  duty  on  less   than   adequate
information,” the applicant states he was informed  that  ACS  testing
and  the  use  of   recommended   neurology   and   neuropsychological
evaluations are considered “adequate information.”

In regards to AFPC/JA’s statement that his test at ACS  was  described
as  “troublesome”  but  not  disqualifying,  the  applicant   recounts
circumstances during the period of the test that may have impacted the
results.  In response to the assertion he did not offer  to  take  the
PET  scan  or  consent  to  genetic  testing  after   returning   from
deployment, the applicant asks why would he offer to take a  PET  scan
if, according to the Air Force, retesting was not necessary if he  did
not first consent to genetic testing.  Applicant  states  he  was  not
offered a retest without genetic testing.  He states  he  cannot  find
anywhere that genetic testing is mandatory.

The applicant indicates he believes the “process was  unfair  and  the
incorrect decision was made based on unscientific data, as  stated  in
the AFMSA/SGPA letter dated 8 Mar 04.  The applicant notes the use  of
the word “felt” in the statement, “Your neurological and psychological
findings were “felt” to be consistent with an early  neurodegenerative
process.”  The applicant states that the word “felt” has no scientific
basis.  Applicant believes this  is  clear  because  he  is  currently
cleared to fly as of 25 Jul 05 and has no neurodegenerative issues.

Applicant states there were a number of errors in  his  case  such  as
informing him that the initial testing would be used  to  establish  a
baseline for future waiver reviews.  No time prior to his visit to ACS
was a PET scan discussed or offered.  He states he was  also  told  he
was cleared to fly as far as ACS  testing  was  concerned  then  later
learned that AFMSA would make the decision.  He  states  this  differs
from an early advisory opinion that ACS did  not  approve  the  waiver
because he did not take genetic testing.

In support of his appeal, applicant submits a copy of a letter,  dated
13 Nov 02, he wrote requesting retesting.

The applicant’s complete response, with attachment, is at Exhibit I.

_________________________________________________________________

SECOND ADDITIONAL AIR FORCE EVALUATION:

Pursuant to the request of  the  Director,  Air  Force  Review  Boards
Agency (Exhibit J), the BCMR Medical Consultant provided an evaluation
of the issues in the applicant’s case.  Of concern  to  the  Director,
Air Force Review Boards Agency were  the  conflicting  recommendations
from AFMSA/SGPA and AFPC/JA, which led the Board to an  initial  split
decision to grant.  Since AFPC/JA primarily addressed the legal issues
of the case, particularly the applicability of Executive  Order  13145
and AFMSA/SGPA’s recommendation was  ambiguous,  the  Director,  AFRBA
determined an advisory was required to clarify the responsibilities of
the Air Force medical community as well as  the  applicant’s  on  this
issue.

The BCMR Medical  Consultant  recommends  denial  of  the  applicant’s
request.  He notes that according to AFI 11-402, flying and flight pay
are not a right or entitlement  and  are  explicitly  contingent  upon
medical qualification.  It is the rated  officer’s  responsibility  to
maintain  medical  qualification  and  it  is  not  the  Air   Force’s
responsibility to prove the member is not  medically  qualified.   The
BCMR Medical Consultant notes that merely having a family  history  of
Huntington’s  disease  (particularly   a   parent   or   sibling)   is
disqualifying  for  aviation  duty.   He  also  discusses  traits  and
manifestations of the disease.  The BCMR Medical Consultant notes  the
applicant’s argument that his declination of  testing  should  not  be
held against him because AFI  48-123  does  not  specifically  require
genetic testing or PET scanning to assess  for  medical  qualification
for aviation duty.  However, the Medical Consultant  points  out  that
“with rare exception,” one cannot find anywhere in AFI 48-123 that any
medically  indicated  test  is  specifically  listed   as   mandatory.
However,  AFI  48-123  clearly  states  required  medical  testing  is
determined by the evaluating flight surgeon.  Specific tests for every
conceivable condition or circumstance that may arise are not  mandated
in regulation, do not have to be, and would be impossible to do.   The
fact that AFI 48-123 does not mandate any specific  testing  does  not
form a  basis  to  circumvent  the  requirement  for  medical  testing
intended to ensure flight safety.   This  is  inconsistent  with  long
established policy and is contrary to the interest of the Services.

The applicant argues that Air Force aeromedical authorities  erred  in
not granting a waiver because Huntington disease  poses  no  risk  for
sudden incapacitation.  However, his argument  ignores  the  risk  for
subtle performance decrement, particularly with regard to  the  higher
senses and the requirement that first signs or symptoms must be easily
detectable and not pose a risk to the safety of the individual  or  to
others.  The BCMR Medical Consultant notes that AFMSA/SGPA  recommends
granting back pay as a matter of good faith, but it is not  clear  why
the author makes this statement.  The fact the applicant was granted a
waiver in 1997 does not mean the Air Force is bound to make  the  same
decision in  2002.   Aeromedical  authorities  offered  the  applicant
reasonable options based on the state of medical science at  the  time
of the applicant’s evaluation to help him fulfill  his  responsibility
under Air Force regulations to maintain  medical  certification.   The
applicant was not  punished  for  declining  genetic  testing  or  PET
scanning.  When the applicant consented to the clearly  indicated  PET
scanning and the result was normal, he was granted a waiver.

The complete evaluation is at Exhibit K.

_________________________________________________________________

APPLICANT’S RESPONSE TO SECOND ADDITIONAL EVALUATION:

In his response to the BCMR evaluation, applicant states  in  response
to the assertion he was offered but declined genetic  testing  that  a
document in his medical records states:  “Recommend forwarding  waiver
request and geneticists consult.  No further  testing  recommended  at
this time.”  The applicant also refers the Board to several  documents
regarding his evaluation and waiver determination  made  in  1997.  He
also notes that his  medical  records  were  reviewed  in  Jun  99  in
accordance with AFI 48-123 for waiver update  and  noted  the  medical
reasons he was on a waiver, including “Huntington’s chorea.”

The applicant notes that “when an aviator fails  to  maintain  medical
certification due to factors within his or her control, qualifications
for aviation service is immediately terminated.”  He maintains that he
did maintain medical certification by agreeing to go to ACS at  Brooks
AFB for testing without genetic testing to establish  a  baseline  for
future waivers.  He points out that as noted in his  earlier  advisory
responses, the test results from ACS were not disqualifying for flight
duty.  The applicant further notes the statement in AFI 48-123,  which
states required medical testing is determined by the evaluation flight
surgeon.  However, his flight surgeon at his base of assignment stated
it was the Air Force Surgeon General  office  directing  him  to  have
medical testing.  It was never communicated to him  that  the  testing
was required to remain on  flying  status.   It  was  clear  from  the
medical experts it was  not  necessary  and  no  further  testing  was
required.

In further support of his appeal, applicant provides extracts from his
medical records.

The applicant’s complete response, with attachments, is at Exhibit M.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing  law
or regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented  to  demonstrate
the existence of probable error or injustice.   The  Board  notes  the
somewhat ambiguous recommendation of  AFMSA/SGPA  that  they  have  no
objection  to  granting  the  applicant’s  request  on  the  basis  of
goodwill.  However, it is not the mandate of this Board  to  recommend
the correction of a military record on this basis.  We are charged  to
determine if an applicant has been the victim of an error or injustice
and if so recommend appropriate relief.   AFMSA/SGPA’s  recommendation
notwithstanding, it appears that all  advisory  opinions  prepared  in
this case are  unanimous  in  their  conclusion  that  the  action  to
medically disqualify the applicant was  done  properly  in  accordance
with governing directives.  We find the rationale  put  forth  in  the
advisories  prepared  by  AFPC/JA  and  the  BCMR  Medical  Consultant
especially  compelling  and  adopt  them  as   the   basis   for   our
determination that the applicant has not been the victim of  an  error
or injustice warranting the relief requested.

4.  The applicant's case is adequately documented and it has not  been
shown  that  a  personal  appearance  with  or  without  counsel  will
materially  add  to  our  understanding  of   the   issues   involved.
Therefore, the request for a hearing is not favorably considered.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of material error  or  injustice;  that  the
application was denied without a personal  appearance;  and  that  the
application will only be reconsidered upon  the  submission  of  newly
discovered relevant evidence not considered with this application.
_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 14  March  2006  and  13  July  2006,  under  the
provisions of AFI 36-2603:

      Mr. Richard A. Peterson, Panel Chair
      Mr. Richard K. Hartley, Member
      Ms. Janet I. Hassan, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 30 Nov 05, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memo, AFMSA/SGPA, dated 16 Dec 05.
    Exhibit D.  Memo, HQ USAF/XOOT, dated 5 Jan 06.
    Exhibit E.  Letter, SAF/MRBR, dated 13 Jan 06.
    Exhibit F.  Letter, Applicant, dated 6 Feb 06, w/atchs.
    Exhibit G.  Memo, AFPC/JA, dated 30 Jan 06.
    Exhibit H.  Letter, SAF/MRBR, dated 3 Feb 06.
    Exhibit I.  Letter, Applicant, dated 28 Feb 06.
    Exhibit J.  Memo, Director, AFRBA, dated 19 Apr 06.
    Exhibit K.  Memo, BCMR medical Consultant, dated 19 May 06.
    Exhibit L.  Letter, AFBCMR, dated 22 May 06.
    Exhibit M.  Memo, Applicant, dated 11 Jun 06, w/atchs.




                                   RICHARD A. PETERSON
                                   Panel Chair